Did The Law Catch Up To Science? Or The Other Way Around?

If you follow appellate law in Connecticut - or if you make a regular habit of reading the Connecticut Law Journal every week - you find that things fall into a particular rhythm. The lower Appellate Court is a high-volume court that applies the law without breaking much new ground.

The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.

At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.

Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.

The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.

The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.

How to do this and is it worth it?

This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.

In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.

And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.